Now there is a constitutional right to inflict harm

It would be very easy to avoid wasting my time howling in the wilderness and not bother stating why I agree with other lone wolves, namely, U.S. Supreme Court Associate Justice Samuel A. Alito Jr. and the members of the jury that returned a multimillion-dollar verdict against the Westboro Baptist Church.

They expressed the belief that the First Amendment does not give Fred Phelps and other members of his family-congregation the constitutional right to inflict deliberately the extreme pain that every court in Snyder v. Phelps agreed, and no human being disputes, Albert Snyder suffered when the Phelpses targeted his son’s funeral and attacked his dead child with an unrelenting and brutal fury.

It also would be very easy to join the ranks of the many lawyers, scholars, and other legal pundits whose pontifications I’ve read since this case was decided, all of whom have agreed with the view of the 8-1 majority that this case involves “speech” on “a matter of public concern” and is governed by the settled rule that such speech “is entitled to ‘special protection’ under the First Amendment” and “cannot be restricted simply because it is upsetting or arouses contempt.”

But join I won’t and howl I must, because I don’t agree with the majority’s characterization of what this case is about.

Stating in the first paragraph of the opinion that “[t]he question presented is whether the First Amendment shields the church members from tort liability for their speech in this case,” the majority a few pages later rejected the dissent’s “attempts to draw parallels between this case and hypothetical cases involving defamation or fighting words.”

Instead, the majority expressed its agreement with the view of the U.S. Court of Appeals for the 4th Circuit, that in this case, “there is no suggestion that the speech at issue falls within one of the categorical exclusions from First Amendment protection, such as those for obscenity or ‘fighting words.’”

Really? Obscenity and fighting words may be in the eyes of the beholder, but as Justice Potter Stewart stated in his immortal concurrence in the pornography case Jacobellis v. Ohio, “I know it when I see it.”

This may be the first and last time I ever agree with Justice Alito about anything, but no matter how the Phelpses’ “speech” in this case is characterized, their words should not be allowed, as his dissenting opinion states, to inflict intentionally “severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.”

The Maryland trial jury had good reason for finding that the Phelpses’ words were “outrageous” and “intolerable in a civilized community” — in accordance with the requirements of the Maryland tort of intentional infliction of emotional distress — because there was no dispute in this case that they were.

Stating that “speech cannot be restricted because it is upsetting or arouses contempt,” the majority concluded that outrageousness “is a highly malleable standard” and that the “risk” in this case was “unacceptable,” that the jury was “unlikely to be neutral with respect to the content of the speech.” But whether the Phelpses’ attacks on the Snyder family are labeled as obscene or fighting words, the Phelpses’ “speech” had no constitutionally protected content.

There is a silver lining in the constitutional rule allowing the Phelpses to inflict the maximum harm possible on others with their unleashed vitriol and hate.

One day there will be a funeral for the esteemed leader and founder of the Westboro Baptist Church. And thanks to Fred Phelps and his family, all of us can come and bring any sign that we want wishing him a fond farewell.

— Andrew H. Baida is a partner at Rosenberg|Martin|Greenberg LLP in Baltimore and an adjunct professor of appellate advocacy at two law schools in Maryland.